Story v. United States, 14167.

• Decision Date: 27 December 1950
• Docket Number: No. 14167.,14167.
• Citation: 185 F.2d 952
• Parties: STORY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

185 F.2d 952 (1950)

STORY v. UNITED STATES.

No. 14167.

United States Court of Appeals Eighth Circuit.

December 27, 1950.

Roy L. Story, pro se.

Leo. P. Flynn, U. S. Atty. for the District of South Dakota (Matthew A. Brown, Asst. U. S. Atty., Sioux Falls, S. D., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from an order denying appellant's motion to vacate the judgment and sentence imposed upon him by the trial court on April 22, 1943. Appellant and one Alva Wallace were jointly indicted, charged with the armed robbery of a bank at Turton, in the State of South Dakota, in violation of § 588 (b) now § 2113, Title 12 U.S.C.A. No severance being requested, they were tried together and on a verdict of guilty were sentenced to a term of twenty years imprisonment. Appellant and his co-defendant in that proceeding have prosecuted numerous proceedings based upon various charges going to the regularity and the validity of the proceedings which culminated in their conviction and sentence. These proceedings are evidenced to some extent by the following reported decisions: Story and Wallace v. United States, 8 Cir., 142 F.2d 463; Story and Wallace v. United States, 8 Cir., 142 F.2d 1013; Wallace v. United States, 8 Cir., 174 F.2d 112; Story v. United States, 8 Cir., 174 F.2d 120; Wallace v. Hunter, 10 Cir., 149 F.2d 59; Story v. Hunter, 10 Cir., 158 F.2d 825.

In the present proceeding, based on § 2255, Title 28, U.S.C.A., appellant filed his unverified motion to vacate the judgment and sentence on March 23, 1950, charging that, "The judgment and sentence is void without due process of law, and in violation of and contrary to the Fifth and Sixth Amendments to the United States Constitution in that: your petitioner was deprived of adequate and effective assistance of counsel in a trial before a jury."

Following the filing of this motion and on the 29th day of March, 1950, the court entered an order setting this motion for hearing on the 13th day of April, 1950, at the hour of two o'clock p.m., in the chambers of the court in the City of Sioux Falls, South Dakota, and embodied in the order a provision that copy of the notice and order should be served forthwith upon the appellant. The notice was duly served by mail as provided and on the 13th day of April, 1950, the motion was considered by the court, there being apparently no appearance either by the appellant or the government's attorney. The court upon all the files and records then entered the order appealed from. It is recited in the order that, "* * * it appearing to the satisfaction of the court from all the files and records herein, and from the court's knowledge and recollections of the manner in which the trial was conducted, that petitioner's contentions and allegations that the judgment and sentence is void without due process of law, and in violation of and contrary to the Fifth and Sixth Amendments to the United States Constitution in that petitioner was deprived of adequate and effective assistance of counsel in a trial before a jury, are wholly irresponsible and without foundation; that there is no merit in petitioner's contentions, and that said contentions are wholly contrary to the actual facts as reflected in the files and records in this case and are entitled to no consideration as to their merits. And it further appearing to the court that the above named petitioner has on several previous occasions submitted similar contentions, based on the same allegations as set forth in instant motion, each of such previous motions having heretofore been denied; now, therefore, it is hereby ordered that the Motion to Vacate Judgment and Sentence of said petitioner, Roy L. Story, be and the same hereby is denied."

The appellant later...